Bolling v. Mercedes-Benz USA, LLC et al

Filing 82

AMENDED OPINION AND ORDER. 33 MBUSA's Motion to Dismiss the Class Action Complaint is DENIED as moot. 43 MBUSA's Motion to Dismiss the First Amended Complaint is GRANTED with respect to Count I as to Plaintiffs Dedman and Phlegar, Count II as to Plaintiff Dedman, Count III in its entirety, and Count V as to the Plaintiffs Bolling and Foster- Gittens. It is DENIED as to all other claims. 58 MBUSA's Motion to Amend the Court's Order and 73 Motion to Amend the Record are GRANTED. Signed by Judge Thomas W. Thrash, Jr. on 08/27/2024. (bmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NATALIE BOLLING, individually and
on behalf of all others similarly
situated, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:23-CV-671-TWT

MERCEDES-BENZ USA, LLC, et al.,
Defendants.
AMENDED OPINION AND ORDER
This is a products liability case. It is before the Court on the Defendant
Mercedes-Benz USA, LLC (“MBUSA”)’s 1 Motion to Dismiss the Class Action
Complaint [Doc. 33], MBUSA’s Motion to Dismiss the First Amended
Complaint [Doc. 43], MBUSA’s Motion to Amend the Court’s Order [Doc. 58],
and MBUSA’s Motion to Amend the Record [Doc. 73]. As explained below,
MBUSA’s Motion to Dismiss the Class Action Complaint [Doc. 33] is DENIED
as moot, the Defendants’ Motion to Dismiss the First Amended Complaint
[Doc. 43] is GRANTED in part and DENIED in part, MBUSA’s Motion to
Amend the Court’s Order [Doc. 58] is GRANTED, and MBUSA’s Motion to

The Named Defendants in this case are MBUSA and Mercedes-Benz
Group AG (“MBG”). The present motions are all only on behalf of MBUSA.
When the Court refers to the Named Defendants collectively in this Order, it
will call them “the Defendants.”
1

Amend the Record [Doc. 73] is GRANTED.
I.

Background 2

This case involves an alleged defect in panoramic sunroofs (“PSRs”)
installed in motor vehicles. PSRs are glass sunroofs that, on some vehicles,
stretch across much of the entire roof of the vehicle. (First Am. Compl. ¶ 1).
Mercedes-Benz has been offering vehicles with factory-installed PSRs since the
early 2000s. (Id. ¶ 41). MBG is a foreign corporation “engaged in the business
of designing, engineering, manufacturing, testing, marketing, supplying,
selling, and distributing motor vehicles, including the Class Vehicles, in the
United States.” (Id. ¶ 27). MBUSA is an MBG-owned distributor for passenger
cars in the United States. (Id. ¶ 26). The Named Plaintiffs are various
individuals who purchased Mercedes-Benz vehicles whose PSRs suddenly
shattered under normal driving conditions. (Id. ¶ 20-25, 101, 117, 126, 139,
150, 157). The Plaintiffs bring this case on behalf of a putative class (and
several putative subclasses) of individuals who purchased or leased a Class
Vehicle. 3 (Id. ¶ 162).

The Court accepts the facts as alleged in the First Amended Complaint
as true for purposes of the present Motion to Dismiss. Wildling v. DNC Servs.
Corp., 941 F.3d 1116, 1122 (11th Cir. 2019).
2

The Class Vehicles include the following models: 2011-present C-Class,
2014-present CLA-Class, 2011-present E-Class, 2011-present GL-Class/GLSClass, 2011-present GLK-Class/GLC-Class, 2012-present M-Class/GLE Class,
2015-2017 Mercedes Maybach S-600, 2011-2012 R-Class, 2011-present SClass, 2011-2019 SL-Class, and 2013-2020 SLK-Class/SLC-Class. (Id. ¶ 161).
2
3

The Plaintiffs allege that the PSRs installed in the Class Vehicles are
defective because they “are prone to spontaneously and often loudly shattering
under normal driving conditions, creating a safety hazard for the vehicle
occupants and surrounding traffic.” (Id. ¶ 4). Several characteristics of the
Class Vehicles’ PSRs allegedly cause this defect. The use of tempered glass in
the Class Vehicles—as opposed to the laminated glass used by other
manufacturers—makes the PSRs susceptible to shattering if, during the
tempering process, the outer compressive layer is compromised. (Id. ¶ 49). The
thin glass in the Class Vehicles’ PSRs make the tempering process even more
difficult because “the compressive layers are thinner, increasing the
probability for the glass to be compromised and result in catastrophic failure.”
(Id. ¶¶ 50-51). Accordingly, “[a] scratch or flaw created during the
manufacturing process can result in progressive damage such that once the
damage creeps into the compressive layer, the entire sunroof shatters.” (Id.
¶ 51). Furthermore, the PSRs in the Class Vehicles have ceramic paint applied
prior to the tempering process. (Id. ¶ 52). That ceramic enamel is an adulterant
that “significantly weaken[s] the structural strength and integrity of the Class
Vehicles’ tempered panoramic sunroof glazing.” (Id. ¶ 53). Altogether, these
flaws cause the PSRs to be unable to withstand the stress present under
ordinary driving conditions and to have a propensity to shatter. (Id. ¶ 59).
The Plaintiffs allege that they each bought or leased a Class Vehicle
with a PSR, and the PSR subsequently shattered under normal driving
3

conditions. (Id. ¶ 97, 101, 113, 117, 120, 126, 133, 139, 145, 150, 152, 157). They
each state that they brought their broken vehicle to a Mercedes-Benz
dealership to replace the PSR and were told that Mercedes-Benz would not
cover the repairs. (Id. ¶ 103-06, 119, 130-31, 141, 143, 150-51, 159). Based on
these alleged facts, the Plaintiffs bring the present lawsuit asserting breach of
warranty, fraudulent concealment, and unjust enrichment claims as well as
related state law claims. MBUSA moved to dismiss the original Complaint,
and the Plaintiffs later filed the First Amended Complaint. MBUSA then
moved to dismiss the First Amended Complaint. 4
II.

Legal Standard

A complaint should be dismissed under Rule 12(b)(6) only where it
appears that the facts alleged fail to state a “plausible” claim for relief. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may
survive a motion to dismiss for failure to state a claim, however, even if it is
“improbable” that a plaintiff would be able to prove those facts; even if the
possibility of recovery is extremely “remote and unlikely.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007). In ruling on a motion to dismiss, the court
must accept the facts pleaded in the complaint as true and construe them in
After the Court issued its Opinion and Order on these Motions,
MBUSA made a Motion to Amend the Court’s Order asking the Court to clarify
that the Motions were only on behalf of MBUSA and not MBG. The Court
grants this Motion and has corrected language throughout this Amended
Opinion and Order that previously indicated the Motions to Dismiss were on
behalf of both of the Defendants.
4
4

the light most favorable to the plaintiff. See Quality Foods de Centro Am., S.A.

v. Latin Amwi. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.
1983); see also Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40
F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading stage, the plaintiff
“receives the benefit of imagination”). Generally, notice pleading is all that is
required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753
F.2d 974, 975 (11th Cir. 1985). Under notice pleading, the plaintiff need only
give the defendant fair notice of the plaintiff’s claim and the grounds upon
which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly,
550 U.S. at 555).
III.

Discussion

As an initial matter, the Plaintiffs filed its First Amended Complaint
after MBUSA filed its original Motion to Dismiss [Doc. 33]. “An amended
complaint supersedes the original complaint, and thus renders moot a motion
to dismiss the original complaint.” Southern Pilot Ins. Co. v. CECS, Inc., 15 F.
Supp. 3d 1284, 1287 n. 1 (N.D. Ga. 2013) (citations omitted). Therefore, the
MBUSA’s first Motion to Dismiss [Doc. 33] is denied as moot.
After the Plaintiffs amended their Complaint, MBUSA filed a Motion to
Dismiss the First Amended Complaint [Doc. 43]. In this Motion to Dismiss,
MBUSA argues that the Plaintiffs lack standing, that the First Amended
Complaint is an improper “shotgun pleading,” and that the Plaintiffs failed to
5

properly state any of its claims. The Court will consider each of these
arguments in turn.
A. Standing
MBUSA moves under Rule 12(b)(1) to dismiss the First Amended
Complaint. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 5-11). A complaint
should be dismissed under Rule 12(b)(1) only where the court lacks jurisdiction
over the subject matter of the dispute. Fed. R. Civ. P. 12(b)(1). Attacks on
subject matter jurisdiction come in two forms: “facial attacks” and “factual
attacks.” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256,
1260 (11th Cir. 1997). MBUSA asserts a factual attack here. (MBUSA’s Br. in
Supp. of Mot. to Dismiss, at 6; Reply Br. in Supp. of Mot. to Dismiss, at 2-3).
Factual attacks “challenge the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered.” Garcia, 104 F.3d at 1261 (quotation
marks omitted). Generally on a factual attack, “no presumptive truthfulness
attaches to plaintiff’s allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.” Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999)
(quotation marks and citation omitted). MBUSA argues (1) the Plaintiffs have
not satisfied the traceability element of standing, (2) the Plaintiffs cannot
represent people who bought vehicles different than their own, and (3) the
Plaintiffs lack standing for equitable relief. (MBUSA’s Br. in Supp. of Mot. to
6

Dismiss, at 5-11).
i.

Traceability

With respect to traceability, MBUSA contends there is no standing
because the “Plaintiffs do not prove their PSRs shattered because of the defect
they allege.” (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 6). The Plaintiffs
respond that this challenge is a premature merits argument and that they have
sufficiently alleged facts for standing. (Pls.’ Br. in Opp’n to Mot. to Dismiss, at
4-6). The Court agrees with the Plaintiffs.
Many of the cases MBUSA cite in its brief involve complaints that were
dismissed due to incomplete allegations. See Corona v. Mercedes-Benz USA,

LLC, 2022 WL 17089814, at *2 (C.D. Cal. Sept. 28, 2022) (dismissing complaint
for lack of standing because it did not allege that the stalling of the vehicle was
caused by the defect and because the defense provided evidence it was not);

Doss v. Gen. Mills, Inc., 2019 WL 7946028, at *2 (S.D. Fla. June 14, 2019)
(dismissing complaint for lack of standing because “there is no allegation that
she did not receive, at a minimum, the product General Mills said it was
offering.”); Callaghan v. BMW of N. Am., LLC., 2014 WL 1340085, *3 (N.D.
Cal. Apr. 2, 2014) (dismissing complaint for lack of standing because “no
allegations can be found suggesting plaintiffs or anyone else has suffered the
‘sudden and premature failure’ of an automatic transmission because the
automatic transmission fluid was not timely changed.”); Contreras v. Toyota

Motor Sales USA, Inc., 2010 WL 2528844, at *6 (N.D. Cal. June 18, 2010)
7

(dismissing complaint for lack of standing when the plaintiffs failed to allege
several facts that would demonstrate they suffered an injury-in-fact), rev’d on

other grounds, 484 F. App’x 116 (9th Cir. 2012).
By contrast, the Plaintiffs plausibly allege that they suffered injuries
that are fairly traceable to the Defendants. The Plaintiffs describe in detail the
choices that the Defendants allegedly made which caused its PSRs to be more
susceptible to shattering. (First Am. Compl. ¶¶ 39-59). They further allege that
the PSRs in the Plaintiffs’ cars in fact shattered. (Id. ¶¶ 101-02, 117-18, 126-27,
139-40, 150, 157-58). The Plaintiffs assert that the Defendants would not pay
for the repairs to the PSRs. (Id. ¶¶ 106, 119, 131, 141, 151, 159). Finally, the
Plaintiffs explicitly state that the Defendants’ actions are the cause of their
injuries. (Id. ¶¶ 199, 222, 243, 254, 262, 277, 299, 318, 332, 339-40, 354). Since
the Plaintiffs allege concrete injuries that are traceable to the Defendants,
most of the cases cited by MBUSA are simply inapposite.
MBUSA makes much of the fact that the Plaintiffs have not proffered
any evidence outside of their First Amended Complaint to support standing.
(Reply Br. in Supp. of Mot. to Dismiss, at 2-3). More specifically, MBUSA
argues that the Plaintiffs “[did] not prove their PSRs shattered because of the
defect they allege” rather than as a “result of an outside influence.” (MBUSA’s
Br. in Supp. of Mot. to Dismiss, at 6). To support its argument that the First
Amended Complaint should be dismissed because of this lack of evidence,
MBUSA cites to Sabater v. American Journey (PET), LLC, 570 F. Supp. 3d
8

1160 (S.D. Fla. 2021). There, the plaintiff sued dog food manufacturers for
advertising dog food as “grain-free” even though the products allegedly
contained wheat. Id. at 1162. In support of their motion to dismiss, the
defendants

provided

“undisputed

evidence

contradicting

Plaintiff’s

allegations.” Id. at 1163. Because there were “no specifics in the [First
Amended Complaint]—or in other counterevidence—addressing” that evidence
and because of the “Plaintiff's failure to allege that the bags he purchased
contained wheat,” the court dismissed the case for lack of standing. Id. at 1164.
Neither of those rationales support dismissal in this case. First, the
Plaintiffs explicitly dispute the finding that the PSRs shattered because of
outside influences. (First Am. Compl. ¶ 70 (“Mercedes claims its sunroofs
shatter as a result of impact from roadway objects, but this explanation is
incomplete, speculative and pretextual”); see also First Am. Compl. ¶¶ 94,
107-08, 129, 139, 150, 157). Second, as described above, the Plaintiffs
adequately alleged that their vehicles had a defect that caused them injuries.
Because of these differences, the Court does not find Sabater to be persuasive
here.
MBUSA is correct that when there is a factual attack on subject matter
jurisdiction, courts make findings of fact irrespective of the pleadings, but that
principle is not unyielding. Garcia, 104 F.3d at 1261. If a factual attack
implicates an element of the cause of action, “[t]he proper course of action for
the district court ... is to find that jurisdiction exists and deal with the objection
9

as a direct attack on the merits of the plaintiff's case.” Id. (citation omitted).
That is what is happening here. If the Plaintiffs are ultimately unable to show
that the PSRs shatter because of a defect rather than outside influences, they
will be unable to prove causation and their claims will fail. Yet, without the
benefit of discovery, it is too early to know whether the Plaintiffs will be able
to do so. At bottom, jurisdictional standing doctrine is in place to ensure that
the federal courts are hearing “actual cases or controversies.” Spokeo, Inc. v.

Robins, 578 U.S. 330, 337-38 (2016) (citation omitted). It is not meant to
preempt discovery because plaintiffs have not proven their case at the pleading
stage. Accordingly, the Court will not dismiss the First Amended Complaint
for lack of traceability.
ii.

Standing Over Other Vehicles

The next basis for the Defendant’s Rule 12(b)(1) motion is that the
Plaintiffs do not have standing to assert claims regarding vehicle models
and/or model years that are different from the ones the Plaintiffs purchased.
(MBUSA’s Br. in Supp. of Mot. to Dismiss, at 8). The Plaintiffs counter that
this issue should be deferred until class certification. (Pls.’ Br. in Opp’n to Mot.
to Dismiss, at 6). The Court agrees with the Plaintiffs.
Federal courts have taken divergent approaches to the question of when
to analyze the named plaintiffs’ standing over absent class members’ claims.

Compare Porter v. Chrysler Grp. LLC, 2013 WL 6839872, at *2-3 (M.D. Fla.
Dec. 27, 2013) (“Plaintiffs need not prove that up now; such fact-intensive
10

Article III standing inquiry is better suited to the class-certification stage.”)

with Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1394 (S.D. Fla. 2014) (partially
dismissing a complaint before class certification because “a named plaintiff in
a consumer class action cannot raise claims relating to those other products
which he did not purchase.” (brackets, quotation marks, and citation omitted)).
For most cases in this District, such analysis has been done at the class
certification stage. See, e.g., Hadjian v. Mercedes-Benz, USA, LLC, 2022 WL
3699603, at *5 (N.D. Ga. March 31, 2022); Amin v. Mercedes-Benz USA, LLC,
301 F. Supp. 3d 1277, 1283-85 (N.D. Ga. 2018); McCabe v. Daimler AG, 948 F.
Supp. 2d 1347, 1374 (N.D. Ga. 2013).
The only case from this District that MBUSA cites to in support of its
position is Callen v. Daimler AG, 2021 WL 4523436, at *3-4 (N.D. Ga. Oct. 4,
2021). There, the named plaintiff brought state law claims on behalf of a
national class. Id. at *3-4. But because the named plaintiff only alleged a legal
injury in the state of Georgia, the court held that the named plaintiff could not
“seek equitable and injunctive relief individually—or on behalf of class
members—under the laws of any other state.” Id. at *4. In ruling that way, the
court relied on Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir.
2000). There, the Eleventh Circuit stated, “each claim must be analyzed
separately, and a claim cannot be asserted on behalf of a class unless at least
one named plaintiff has suffered the injury that gives rise to that claim.” Id. at
1280 (citation omitted). “Following Prado, named plaintiffs in class actions
11

have, time and again, been prohibited from asserting claims under a state law
other than that which the plaintiff's own claim arises.” Callen, 2021 WL
4523436, at *3 (quotation marks and citation omitted).
The present case is distinguishable. Here, “[t]he relevant question…is
not whether the Named Plaintiffs have standing to sue Defendants—they most
certainly do—but whether their injuries are sufficiently similar to those of the
purported Class to justify the prosecution of a nationwide class action.” In re

Grand Theft Auto Video Game Consumer Litig. (No. II), 2006 WL 3039993, at
*3 (S.D.N.Y. Oct. 25, 2006) (citations and footnote omitted). “This question is,
at least in the first instance, appropriately answered through the class
certification process.” Id. This is so because the Supreme Court has found it
proper to defer conducting an Article III standing analysis when the class
certification issues are “logically antecedent” to Article III concerns. Ortiz v.

Fibreboard Corp., 527 U.S. 815, 831 (1999). “[T]here is a strong consensus in
favor of treating class certification as logically antecedent to standing where
class certification is the source of the potential standing problems.” Hadjian,
2022 WL 3699603, at *5 (brackets, quotation marks, and citations omitted).
Because there is at least one named Plaintiff that has standing to assert
each claim, there is only a potential standing problem depending on the scope
of the class certification. The Plaintiffs have alleged that the same defect is in
all of the Class Vehicles and caused the same injury. (First Am. Compl. ¶¶ 41,
65-66). This is enough to defer any ruling on standing over the putative absent
12

class members until the class certification stage. See, e.g., Carter v. Forjas

Taurus, S.A., 701 F. App’x. 759, 762, 765 (11th Cir. 2017) (finding standing
when the named plaintiff bought only one of nine gun models at issue because
“Carter alleged he owned a class gun that suffered from the same defects as
the rest of the class guns.”); Hadjian, 2022 WL 3699603, at *5 (“Plaintiff
Hadjian's factual allegations sufficiently articulate his individual standing in
connection with his claims regarding various Mercedes-Benz models because
they all have substantially identical or identical inlet defects. Thus, even if
Plaintiff Hadjian did not purchase each of the Mercedes-Benz models himself,
‘[t]he [i]nlet [d]effect [sic] is inherent in each Class Vehicle and was present at
the time of sale,’ assuming the allegations are true.” (citation omitted)); Amin,
301 F. Supp. 3d at 1284-85 (deferring ruling on standing as to the claims of
absent class members because “even if Plaintiffs did not purchase each of the
Mercedez–Benz [sic] car models themselves, the HVAC systems in the
identified models they did purchase suffered from the same defects as the rest
of the models, assuming the allegations are true.” (quotation marks, footnote,
and citation omitted)). Consequently, the Court will not dismiss the First
Amended Complaint with respect to models not purchased by the named
Plaintiffs.
iii.

Standing to Seek Equitable Relief

The final standing issue MBUSA raises is that the Plaintiffs do not have
standing to seek equitable relief. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at
13

9-11). There are three requirements for Article III standing for equitable relief.

Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1203 (11th Cir. 1991).
“First…he must demonstrate that he is likely to suffer future injury; second,
that he is likely to suffer such injury at the hands of the defendant; and third,
that the relief the plaintiff seeks will likely prevent such injury from
occurring.” Id. at 1203-04. MBUSA argues that the Plaintiffs do not plead facts
showing there is an inadequate remedy at law nor that there is a serious risk
of continuing irreparable injury if relief is not granted. (MBUSA’s Br. in Supp.
of Mot. to Dismiss, at 9-10). The Plaintiffs counter that they have adequately
pled the requirements for equitable relief in the First Amended Complaint.
(Pls.’ Br. in Opp’n to Mot. to Dismiss, at 7-8). The Court does not find that the
Plaintiffs lack standing at this time.
MBUSA first argues that because the Plaintiffs seek damages, they
cannot establish that there is an inadequate remedy at law. (MBUSA’s Br. in
Supp. of Mot. to Dismiss, at 9-10; Reply Br. in Supp. of Mot. to Dismiss, at 6).
However, the Federal Rules of Civil Procedure authorize parties to plead for
“alternative or different types of relief.” Fed. R. Civ. P. 8(a)(3); see also

Adelphia Cable Partners, Inc. v. E & A Beepers Corp., 188 F.R.D. 662, 666
(S.D. Fla. 1999) (“Although equitable relief ultimately may not be awarded
where there exists an adequate remedy at law, Plaintiff certainly may plead
alternative equitable relief.”). As such, the fact that the Plaintiffs seek
damages does not necessitate dismissal of the Plaintiffs’ request for equitable
14

relief. 5
MBUSA next argues that there is no serious risk of continuing
irreparable injury if the relief sought is not granted. (MBUSA’s Br. in Supp. of
Mot. to Dismiss, at 10-11; Reply Br. in Supp. of Mot. to Dismiss, at 6-7). The
Plaintiffs assert that they are at risk of future harm because when the PSRs
break, they are replaced with the same allegedly defective PSRs which are at
risk of breaking again. (Pls.’ Br. in Opp’n to Mot to Dismiss, at 7-8; First Am.
Compl. ¶¶ 84, 96). MBUSA replies that this is insufficient because none of the
named Plaintiffs have had their replacement PSRs break or need repair and
because an NHTSA investigation did not find that the PSRs are inherently
defective. (Reply Br. in Supp. of Mot. to Dismiss, at 6-7).
The fact that the replacement PSRs have not broken yet is not indicative
of a lack of future risk of harm considering that all but one of the named
Plaintiffs’ PSRs broke within the last year. (First Am. Compl. ¶¶ 101, 117, 126,
139, 150, 157). The other one—the Plaintiff Bolling’s PSR—shattered on
February 18, 2022. (Id. ¶ 101) For a latent defect like the one described in the
First Amended Complaint, it is unsurprising that none of them have broken
again since being repaired within the last year or two. Furthermore, while the

MBUSA’s citation to Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.
2000) is inapposite. There, the court found that injunctive relief was barred by
the Federal Courts Improvement Act, which amended 42 U.S.C. § 1983 to
prohibit injunctive relief against a judicial officer in certain circumstances.
That provision has no application to this case.
15
5

NHTSA closed its investigation without finding a “safety-related defect trend,”
the report explicitly stated that “[t]he closing of this investigation does not
constitute a finding by NHTSA that a safety defect does not exist.” NAT’L
HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T

OF

TRANSP., EA 14-002,

ENGINEERING ANALYSIS CLOSING REPORT, 6-7 (2021). Even by its own terms,
the report does not take a position on whether the PSRs are in fact defective.
Finally, as above, the Court will not require the Plaintiffs to prove an element
of their case—i.e., that the PSRs are defective—before proceeding to discovery.

See supra Section III.A.i. The Court declines to dismiss the Plaintiffs’ claims
on these bases. To the extent that MBUSA moves to dismiss the Georgia Unfair
Deceptive Trade Practice Act and the Unfair Competition Law claims because
the relevant Plaintiffs do not meet the state law requirements for alleging
future harm or an inadequate remedy at law, those arguments are addressed
below.
B. Shotgun Pleading
MBUSA contends that the First Amended Complaint should be
dismissed as an improper shotgun pleading because it has multiple counts that
adopt the allegations of all preceding counts and because it combines multiple
claims against multiple defendants without specifying which defendant is
responsible for which act. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 11).
The Court disagrees.
For starters, the First Amended Complaint does not contain “multiple
16

counts that each adopt the allegations of all preceding counts.” Clifford v.

Federman, 855 F. App’x 525, 528 (11th Cir. 2021) (citation omitted). Instead,
each count incorporates and adopts the factual allegations at the beginning of
the First Amended Complaint. (First Am. Compl. ¶¶ 175, 202, 225, 244, 256,
264, 281, 304, 323, 334, 342). Because the counts only adopt the factual
allegations of the First Amended Complaint, each successive claim does not
“carry all that came before and the last count” is not “a combination of the
entire complaint.” Barmapov v. Amuial, 986 F.3d 1321, 1325 (11th Cir. 2021)
(citation omitted). Therefore, the First Amended Complaint is not a shotgun
pleading on this basis.
The second basis MBUSA raises is similarly unavailing. There is a
shotgun pleading when a complaint “combin[es] multiple claims against
multiple defendants without specifying which defendant is responsible for
which act,” Clifford, 855 F. App’x at 528 (citation omitted). However, “[a]
plaintiff may plead claims against multiple defendants by referring to them
collectively, for example by referring to a group of defendants as ‘defendants.’”

1-800-411-I.P. Holdings, LLC v. Ga. Injury Ctrs., LLC, 71 F. Supp. 3d 1325,
1330 (S.D. Fla. 2014) (citation omitted). “The practice only runs afoul of the
applicable pleading standard where it denies a defendant notice of the specific
claims against it” which most often happens “when broad allegations are
directed at a large and diverse group of defendants, leaving unclear just who
is alleged to have committed which acts.” Id. (citations omitted).
17

That is not what is happening here. In this case, “Defendants are related
entities and Plaintiffs are likely to experience difficulty in obtaining
information regarding Defendants' internal policies.” Pereda v. Gen. Motors

LLC, 2022 WL 19975388, at *10 (N.D. Cal. Dec. 9, 2022) (quotation marks and
citations omitted). “Plaintiffs cannot be expected to know the exact corporate
structure and degree of each Defendant's involvement, at this stage in the
litigation and prior to discovery.” In re Volkswagen Timing Chain Prod. Liab.

Litig., 2017 WL 1902160, at *9 (D.N.J. May 8, 2017) (citation omitted).
Consequently, the Court finds that the First Amended Complaint is not a
shotgun pleading. 6
C. Express Warranty Claim
MBUSA moves to dismiss the Plaintiffs’ express warranty claim for
failure to state a claim. It asserts three reasons for this: (1) the Plaintiffs
Bolling, Dedman, and Phlegar’s failure to allege that they complied with the
pre-suit notice requirement, (2) design defects are excluded from the New

MBUSA also takes issue with the fact that the Plaintiffs “conflate” the
two Defendants by using the term “Mercedes” 468 times in the First Amended
Complaint. (Reply Br. in Supp. of Mot. to Dismiss, at 7). As an initial matter,
this is misleading because that term is often used as a brand name rather than
as a reference to the Defendants as entities. (See, e.g., First Am. Compl. ¶ 6
(“The alleged defect may be present in every Mercedes vehicle equipped with a
panoramic sunroof…”)). Furthermore, the term MBUSA is used about 50 times
in the First Amended Complaint and one count is explicitly brought against
only MBUSA. Based on this, the Court cannot conclude that the “plaintiffs
have not even attempted to distinguish between MBUSA and MBG.” (Reply
Br. in Supp. of Mot. to Dismiss, at 8).
18
6

Vehicle Limited Warranty (“NVLW”), and (3) the Plaintiff Phlegar did not
allege that she relied on the terms of the NVLW. (MBUSA’s Br. in Supp. of
Mot. to Dismiss, at 12). The Court addresses each of these in turn.
i.

Pre-Suit Notice

MBUSA maintains that the Plaintiffs Bolling, Dedman, and Phlegar
have failed to state an express warranty claim because both the NVLW and
state law have pre-suit notification requirements with which the Plaintiffs did
not comply. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 12-13). The Court
agrees with respect to Plaintiffs Dedman and Phlegar.
The NVLW provides in part:
Laws in many states and federal law permit owners and/or
lessees to obtain a replacement vehicle or a refund of the purchase
or lease price under certain circumstances. The provisions of
these laws vary from state to state and vary from the federal law.
To the extent allowed or not prohibited by applicable law, MBUSA
requires that you first provide us with direct written notification
of any alleged unrepaired defect or malfunction, or any other
dissatisfaction you have experienced with your vehicle so that we
have the opportunity to cure the problem or dissatisfaction
ourselves. Giving MBUSA itself this direct notice and opportunity
to cure enables us to supplement prior efforts by our authorized
Mercedes-Benz Dealership so any ongoing problem can be
resolved or the dissatisfaction addressed by us.
(MBUSA’s Req. for Judicial Notice, Ex. A at 86, Ex. B at 68). 7 Several courts

The Plaintiffs “do not contest the Court taking judicial notice of the
2019 and 2022 New Vehicle Limited Warranties. (Pls.’ Opp’n to MBUSA’s Req.
for Judicial Notice, at 1). Since the NVLW is “central to the plaintiff’s claim”
and since the Plaintiffs do not dispute its contents, the Court takes judicial
notice of the NVLWs. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).
19
7

have addressed this language or virtually identical language and concluded
that it requires plaintiffs to give MBUSA direct notice of the defect before filing
a lawsuit for breach of the warranty. See, e.g., McCabe, 948 F. Supp. 2d at
1359-60; Callen v. Daimler AG, 2020 WL 10090879, *11 (N.D. Ga. June 17,
2020). Moreover, the “Plaintiffs do not contend that applicable law prohibits
MBUSA from requiring direct written notification of any alleged unrepaired
defect or malfunction.” Pinon v. Daimler AG, 2019 WL 11648560, at *8 (N.D.
Ga. Nov. 4, 2019); (see Pls.’ Br. in Opp’n to Mot. to Dismiss, at 10-14).
Instead, the Plaintiffs argue that they have satisfied the requirement by
presenting their vehicles to the dealers. (Pls.’ Br. in Opp’n to Mot. to Dismiss,
at 10-11). Furthermore, the Plaintiffs assert that Plaintiff Bolling met the
requirement for the additional reason that MBUSA investigated Bolling’s
claim and refused to cover her repair. (Id. at 11). The notion that notifying an
authorized dealer is sufficient to notify MBUSA of the defect has been
“considered and rejected.” Callen, 2020 WL 10090879 at *11. For example, the
court in Pinon stated:
[T]he statement included in the NVLWs that “[g]iving MBUSA
itself this direct notice and opportunity to cure enables us to
supplement prior efforts by our authorized dealers,” shows that
MBUSA contemplated the importance of the written notice and
intended for customers to take the extra step beyond presenting
their problems to a local dealership…Thus, contrary to Plaintiffs’
contention, presenting their vehicles to an authorized MercedesBenz center or dealer could not have been the only method to
present a claim under the NVLW.

Pinon, 2019 WL 11648560, at *9 (citation omitted). The Court finds this
20

reasoning persuasive.
Since the Plaintiffs Dedman and Phlegar have not alleged that they
informed MBUSA (as opposed to their dealers) of the defect prior to this
lawsuit, the Court will dismiss those Plaintiffs’ express warranty claim. (See
First Am. Compl. ¶¶ 130-31, 159). The Plaintiff Bolling adds the allegation
that “MBUSA investigated her incident and refused to cover her repair under
warranty.” (Id. ¶ 106). The Court finds that this allegation supports a
reasonable inference that MBUSA received “direct notice and [an] opportunity
to cure” and was enabled “to supplement prior efforts by [its] authorized
Mercedes-Benz Dealership.” (MBUSA’s Req. for Judicial Notice, Ex. A at 86,
Ex. B at 68). Accordingly, the Court finds that Plaintiff Bolling has sufficiently
alleged that it satisfied the pre-suit notice requirement of the NVLW. 8
ii.

Design Defect Exclusion

The NVLW warrants that “any authorized Mercedes-Benz Dealership
will make any repairs or replacements necessary to correct defects in material
or workmanship, but not design, arising during the warranty period.”

The Plaintiff Bolling’s allegations also satisfies the Alabama notice
requirement. “Alabama courts have held that notice of breach is a condition
precedent to bringing a breach of warranty action, which must be affirmatively
pleaded in the complaint.” Hart v. Yamaha-Parts Distrib., Inc., 787 F.2d 1468,
1474 (11th Cir. 1986) (citations omitted). The Plaintiffs pled that they “notified
Mercedes of the breach within a reasonable time.” (First Am. Compl. ¶ 193).
Viewed in the light most favorable to the Plaintiffs, the Plaintiff Bolling’s
additional allegations make that assertion more than just a conclusory
statement of law.
21
8

(MBUSA’s Req. for Judicial Notice, Ex. A at 11, Ex. B. at 13). Furthermore,
“[g]lass breakage or scratches are not covered unless positive physical proof of
a manufacturing defect can be established.” (Id., Ex. A at 18, Ex. B at 20).
MBUSA argues that these provisions make the Express Warranty Plaintiffs’
claim fail because they allege a design defect rather than a manufacturing
defect. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 13-15). The Express
Warranty Plaintiffs assert that their claim is not barred by these provisions
because the manufacturing process is part of the alleged defect. (Pls.’ Br. in
Opp’n to Mot. to Dismiss, at 14). At this stage in the litigation, the Court agrees
with the Express Warranty Plaintiffs.
The difference between a manufacturing defect and a design defect is
that a manufacturing defect is “an unintended configuration” while a design
defect is “an intended configuration that may produce unintended and
unwanted results.” Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311, 1317
(11th Cir. 1989). While MBUSA is certainly correct that some of the Express
Warranty Plaintiffs’ allegations indicate they are pursuing a design defect,
other allegations suggest “a deviation from the intended design during the
manufacturing process.” Callen, 2020 WL 10090879 at *7. For example, the
Express Warranty Plaintiffs allege that the Class Vehicles have PSRs made of
thin tempered glass with ceramic paint. (First Am. Compl. ¶¶ 48, 50, 52). To
the extent that the Express Warranty Plaintiffs allege that the PSRs shattered
as a result of the materials that the Defendants chose to use, they make a
22

design defect claim under Harduvel. However, the Express Warranty Plaintiffs
also describe the tempering process by saying, “if the compressive layer is
compromised during the manufacturing process or otherwise, the entire piece
of glass fails catastrophically, and often explosively.” (Id. ¶ 49). Moreover, “[a]
scratch or flaw created during the manufacturing process can result in
progressive damage such that once the damage creeps into the compressive
layer, the entire sunroof shatters.” (Id. ¶ 51). The Court finds that these
allegations may state a claim for a “defect[] in material or workmanship” under
the terms of the NVLW.
The case law to which MBUSA cites does not prove otherwise. While

Pickens involved similar claims related to PSRs, the case is distinguishable
because the plaintiff there failed to allege any sort of manufacturing defect and
relied only on a design defect theory. Pickens v. Mercedes-Benz USA, LLC,
2021 WL 5050289, at *2 (N.D. Ill. Nov. 1, 2021). Other cases to which MBUSA
cites make manufacturing defect allegations, but only in a conclusory or
off-handed way. Benefiel v. Johnson & Johnson, 2021 WL 8742892, at *2 (M.D.
Fla. Jan. 14, 2021); Haag v. Hyundai Motor Am., 294 F. Supp. 3d 102, 105
(W.D.N.Y. 2018); Garcia v. Chrysler Grp. LLC, 127 F. Supp. 3d 212, 227
(S.D.N.Y. 2015); Rice v. Sunbeam Prods., Inc., 2013 WL 146270, at *12 (C.D.
Cal. Jan. 7, 2013). By contrast, the Express Warranty Plaintiffs here make
specific factual allegations about how the manufacturing process could have
caused the defects in the Class Vehicles. (First Am. Compl. ¶¶ 49, 51). Finally,
23

MBUSA points to several cases for the proposition that “[a]llegations that
‘every’ vehicle is ‘defective’ also show a design defect.” (MBUSA’s Br. in Supp.
of Mot. to Dismiss, at 12 n. 6). Assuming that to be true, it does not show that
the Express Warranty Plaintiffs have not also alleged a manufacturing defect.

See, e.g., Gregorio v. Ford Motor Co., 522 F. Supp. 3d 264, 288 (E.D. Mich.
2021) (“Plaintiffs are not required to commit to a single theory of the origin of
the defect at this time. And just because Plaintiffs plead allegations involving
a class of vehicles does not preclude the possibility of a manufacturing defect.”
(citations omitted)); Johnson v. FCA US LLC, 555 F. Supp. 3d 488, 500 (E.D.
Mich. 2021) (“Indeed, it is logically possible that either the Panel Defect results
from a flaw in the panel's design or that the panels were all badly built, even
though well-patterned.” (quotation marks and citation omitted)).
Since the Express Warranty Plaintiffs allege that the PSR defect “arises,
at least in part, to manufacturing, materials, or workmanship, the Court
cannot conclude at this stage of the litigation that it is exempt from the
Warranty as a ‘design defect.’” Hadjian, 2022 WL 3699603, at *10 (N.D. Ga.
March 31, 2022) (citations omitted); see also Johnson, 555 F. Supp. 3d at 500
(“[W]here, as here, a party pleads facts consistent with a defect that could be
due to either poor design, or to poor materials and workmanship, the resolution
of that question should await development of the factual record.” (brackets,
quotation marks, and citation omitted)). “Thus, while the Court agrees with
the Defendants that MBUSA's warranties do not cover design defects, it cannot
24

agree that the Plaintiffs’ claim is necessarily one for design defect.” Callen,
2020 WL 10090879, at *7.
iii.

Reliance

The Court dismisses Plaintiff Phlegar’s express warranty claim for
failure to provide pre-suit notification. Thus, the Court does not reach the issue
of whether Plaintiff Phlegar sufficiently alleged that she relied on the terms of
the NVLW.
D. Implied Warranty Claim
MBUSA seeks dismissal of the Plaintiffs Bolling, Dedman, and FosterGittens’s implied warranty claim. First, it argues that the Plaintiffs have failed
to fulfill the necessary notice requirements. Second, it claims that the Plaintiff
Bolling is not in privity with MBUSA. Finally, it asserts that the Implied
Warranty Plaintiffs’ vehicles are not unfit for their ordinary purposes. The
Court dismisses the Plaintiff Dedman’s implied warranty claim but not the
Plaintiffs Bolling and Foster-Gittens’ claims.
i.

Notice Requirements

The Court has already found that the Plaintiff Bolling met the notice
requirement and that the Plaintiff Dedman did not. For the same reasons, the
Court finds that the Plaintiff Dedman’s implied warranty claim should be
dismissed on this basis and that the Plaintiff Bolling’s should not. See Harman

v. Taurus Int’l Mfg., Inc., 586 F. Supp. 3d 1155, 1163 (M.D. Ala. 2022) (“There
is no distinction between implied warranties and express warranties for
25

purposes of the [notice] precondition.” (citation omitted)); In re Ford Motor Co.

E-350 Van Prods. Liab. Litig. (No. II), 2010 WL 2813788, at *34 (D.N.J. July
9, 2010) (“As codified under Georgia law, as a prerequisite to an express or
implied warranty claim, the buyer must within a reasonable time after he
discovers or should have discovered any breach notify the seller of breach or be
barred from any remedy.” (quotation marks and citation omitted)).
ii.

Privity

MBUSA argues that the Plaintiff Bolling’s implied warranty claim
should be dismissed because she is not in privity with MBUSA. (MBUSA’s Br.
in Supp. of Mot. to Dismiss, at 16). Under Alabama law, 9 “without privity of
contract, there is no right of action against a manufacturer for direct economic
loss.” Rhodes v. Gen. Motors Corp., Chevrolet Div., 621 So. 2d 945, 947 (Ala.
1993). The Plaintiff Bolling contends that she meets this privity requirement
because she is a third-party beneficiary of the agreement between MBUSA and
the authorized dealers. (Pls.’ Br. in Opp’n to Mot. to Dismiss, at 16-17). The
Court agrees.
MBUSA claims that the Plaintiff Bolling is not a third-party beneficiary
both because she has not sufficiently alleged an agreement by which she could
“A court sitting in diversity must apply the choice-of-law rules of its
forum state—in this case, Georgia. Georgia follows the lex loci contractus
doctrine of contract interpretation.” Chart Indus., Inc. v. Navigators Speciality
Ins. Co., 2020 WL 13594949, at *2 (N.D. Ga. Aug. 3, 2020) (citations omitted).
Since the Plaintiff bought her car in Birmingham, Alabama law applies. (First
Am. Compl. ¶¶ 97-98).
26
9

be a beneficiary and because Alabama law considers a vehicle purchaser to be
an incidental beneficiary of any such agreement. (Reply Br. in Supp. of Mot. to
Dismiss, at 13). With respect to the allegations, the First Amended Complaint
states “Plaintiffs and the Class Members are intended third-party beneficiaries
of contracts between Mercedes and its dealers, franchisees, representatives,
and agents.” (First Am. Compl. ¶ 211). Moreover, “each warranty provides ‘to
the original and each subsequent owner of a new Mercedes-Benz vehicle’ that
any authorized Mercedes-Benz dealer/center ‘will make any repairs or
replacements necessary to correct defects in material or workmanship arising
during the warranty period.’” (Id. ¶ 90). Viewing these allegations in the light
most favorable to the Plaintiff Bolling, a reasonable inference can be made that
there is an agreement between the Defendants and the authorized dealers so
that the latter will provide services to correct defects within the warranty.
Still, MBUSA insists that the Plaintiff Bolling’s third-party beneficiary
argument is foreclosed by McGowan v. Chrysler Corp., 631 So. 2d 842, 848
(Ala. 1993). There, the Supreme Court of Alabama found that the plaintiff was
not a third-party beneficiary of an agreement between Chrysler and a dealer.

Id. However, this finding was not absolute and instead depended on the facts
of the case:
The primary purpose of the contract was to promote Chrysler’s
reputation and that of its dealers, by ensuring that purchasers of
Chrysler cars would receive warranty service and quality
replacement parts for their cars at Chrysler dealerships.
McGowan never received service on his 1987 Fifth Avenue at
27

Heritage because that dealership went out of business soon after
he bought the car. He brought the car to other dealerships on only
two occasions, and he chose to have the majority of the repairs
done to the car at local non-Chrysler garages or at his own service
station. Under Alabama law, he had no valid third-party contract
claim under the facts of this case, and we therefore affirm the
summary judgment as to the contract claim.

Id. The case is not—as MBUSA claims it to be—the wholesale rejection of
implied warranty claims against upstream entities by vehicle purchasers.
To the contrary, there are several recent cases with facts similar to this
one that have found that the plaintiffs had sufficiently shown that they were
third-party beneficiaries. The Eleventh Circuit has said that under Alabama
law, “a court may look at the surrounding circumstances in determining
whether an end user is a third-party beneficiary. One of the circumstances a
court may consider is the foreseeability of harm to end users.” Lisk v. Lumber

One Wood Preserving, LLC, 792 F.3d 1331, 1339 (11th Cir. 2015) (brackets,
quotation marks, and citations omitted). Based on that, the court held that
there was sufficient support for a third-party-beneficiary claim because
“Lumber One knew its wood was bound for end users and that they would
suffer substantial harm if the wood did not conform to the warranty.” Id.
Relying on Lisk, the court in Freeman v. NIBCO, Inc. found that the
plaintiffs stated a valid implied warranty claim against a manufacturer of
plumbing tubes and fittings even though the plaintiffs bought their house with
the alleged defects from the homebuilders. Freeman v. NIBCO, Inc., 526 F.
Supp. 3d 1112, 1116, 1332 (N.D. Ala. 2020). It did so “because of the
28

foreseeability of harm to those occupants from defective plumbing.” Id. at 1129.
“After all, the homeowners—not the homebuilders—would use the plumbing
for the 10- or 25-year warranty term and be the ones to suffer harm from any
defects.” Id. at 1129-30.
Finally, and most similarly, the court in Hurry v. Gen. Motors, LLC,
held that the plaintiffs plausibly alleged privity with General Motors for
implied warranty claims regarding vehicles purchased at independent
authorized dealers. Hurry v. Gen. Motors, LLC, 622 F. Supp. 3d 1132, 1148
(M.D. Ala. 2022). “It is reasonable to infer that GM and the independent
dealers intended for the eventual users of the Class Vehicles—the Plaintiffs—
to benefit from the implied warranty of merchantability because of the
foreseeability of harm to those users from vehicles which are defective,
unmerchantable, or both.” Id. (citation omitted).
Here, the same reasoning applies. It is reasonable to infer
Mercedes-Benz knew that the consumers—not the dealers—would be the ones
that ultimately suffer from any defects. Moreover, the factual circumstances
present in McGowan do not exist here. The authorized dealership where the
Plaintiff Bolling bought her vehicle, Mercedes-Benz of Birmingham, is still in
business, and she sought repairs from that same dealership for the defect at
issue here. Compare (First Am. Compl. ¶¶ 97-98, 103-06) with McGowan, 631
So. 2d at 848. As such, viewing the facts in the light most favorable to the
non-moving party, the Court finds that the Plaintiff Bolling has plausibly
29

alleged that she is a third-party beneficiary and satisfies the privity
requirement of her implied warranty claim.
iii.

Unfitness

MBUSA’s final challenge to the Implied Warranty Plaintiffs’ claim is
that the Class Vehicles are not unmerchantable. (MBUSA’s Br. in Supp. of
Mot. to Dismiss, at 17). It asserts that because the shattering of PSRs is just a
periodic problem that did not arise until after the vehicles were driven without
any issues for long periods of time. (Id.). The Implied Warranty Plaintiffs claim
that the alleged defect renders the Class Vehicles unmerchantable because it
affects the safety and reliability of the Class Vehicles. (Pls.’ Br. in Opp’n to
Mot. to Dismiss, at 17-19). The Court finds that the Implied Warranty
Plaintiffs have adequately pled that the Class Vehicles are unmerchantable.
For goods to be merchantable in Alabama and Georgia, they must be “fit
for the ordinary purposes for which such goods are used.” Ala. Code
§ 7-2-314(2)(c); O.C.G.A. § 11-2-314(c). The ordinary purpose of a vehicle is to
provide safe and reliable transportation. Nalley v. Gen. Motors LLC, 2022 WL
18459646, at *4 (N.D. Ga. Aug. 30, 2022) (citation omitted); see also Hurry, 622
F. Supp. 3d at 1148-49. The Implied Warranty Plaintiffs allege that when PSRs
shatter, they suddenly make an extremely loud noise that sounds like a
shotgun blast. (First Am. Compl. ¶¶ 65-66, 74, 101, 139). The blasting sound
then is followed by shards of glass falling on the passengers and cutting them.
(Id. ¶ 74). Furthermore, if this happens while traveling at highway speeds, the
30

wind coming into the interior is so strong that it causes the car to shake as if
it has a flat tire. (Id. ¶ 101). After the PSRs shattered, the Implied Warranty
Plaintiffs allege, they had to have their vehicles towed to the dealership
because they were undrivable. (Id. ¶¶ 101, 141). Based on these facts, the
Implied Warranty Plaintiffs allege that the PSR defect renders the Class
Vehicles unfit for their ordinary purpose. (Id. ¶ 210).
MBUSA has offered three cases to show that the shattering PSRs do not
inhibit the ability of the Class Vehicles to fit their ordinary purposes. First, it
points to Elfaridi v. Mercedes-Benz USA, LLC, for the proposition that a onetime issue that is replaced does not render a vehicle unfit. (MBUSA’s Br. in
Supp. of Mot. to Dismiss, at 17-18; Reply Br. in Supp. of Mot. to Dismiss, at 1314). While the court there did find that the vehicles were not unfit because of
PSRs breaking once over several years of use, the facts alleged in that case are
different than the ones here. Elfaridi v. Mercedes-Benz USA, LLC, 2018 WL
4071155, at *10 (E.D. Mo. Aug. 27, 2018). Most significantly, the PSRs there
were alleged to have “cracked” and there appears to have been no allegations
of loud noises, glass showering down on passengers, or vehicles shuddering. Id.
at *3. Because of these factual distinctions that implicate the safety and
reliability of the vehicles, the Court will not follow Elfaridi.
The other two cases that MBUSA cites are also distinguishable. Sheris

v. Nissan N. Am., Inc. involved allegedly defective front brake assemblies.
Sheris v. Nissan N. Am., Inc., 2008 WL 2354908, at *5-6 (D.N.J. June 3, 2008).
31

The court found that because the plaintiff was able to use his brake pads and
rotors for over 20,000 miles and about two years before needing a replacement,
his vehicle was not unmerchantable. Id. at *5. As with Elfaridi, the factual
allegations here are significantly different. “Unlike wear and tear items on a
vehicle like brake pads, tires, or batteries, sunroofs are expected to last the life
of the vehicle, regardless of mileage or time.” (First Am. Compl. ¶ 69). So, while
a vehicle is ordinarily expected to need its brake pads to be regularly inspected
and sometimes replaced, the same is not true for PSRs. As for Soto v. CarMax

Auto Superstores, Inc., the court there granted a motion for summary
judgment because the plaintiff “failed to present evidence showing that the
Blazer was unmerchantable.” Soto v. CarMax Auto Superstores, Inc., 271 Ga.
App. 813, 815 (2005). Here, the case is at the pleading stage and the Plaintiffs
are therefore not required to provide evidence to survive the Motion to Dismiss.
Based on the above, the Court finds that the Implied Warranty Plaintiffs have
sufficiently alleged that the Class Vehicles were unmerchantable.
E. Magnuson-Moss Warranty Act Claim
The Plaintiffs Bolling, Dedman, Foster-Gittens, and Phlegar assert
claim against the Defendants for violating the Magnuson-Moss Warranty Act
(“MMWA”). (Compl. ¶¶ 225-243). Since the Plaintiffs Dedman and Phlegar do
not adequately state a state-law warranty claim, they cannot state an MMWA
claim. See Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1200 n.
14 (N.D. Ga. 2005) (“The [MMWA] does not provide an independent cause of
32

action for state law claims, only additional damages for breaches of warranty
under state law.” (citation omitted)). Furthermore, MBUSA argues that the
MMWA Plaintiffs’ claim fails because there are not one hundred named
plaintiffs and because they did not provide notice to the Defendants that they
were acting on behalf of a class. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at
18-19).
With respect to the number of named plaintiffs, the MMWA does not
allow lawsuits in federal district courts “if the action is brought as a class
action, and the number of named plaintiffs is less than one hundred.”
15 U.S.C. § 2310(d)(3)(C). The MMWA Plaintiffs note that there is a circuit
split as to whether this numerosity requirement has been superseded by the
Class Action Fairness Act (“CAFA”) and argue that it has. (Pls.’ Br. in Opp’n
to Mot. to Dismiss, at 19-20). The Eleventh Circuit has not considered this
issue yet. Nuwer v. FCA US LLC, 343 F.R.D. 638, 648 (S.D. Fla. 2023).
However, many district courts in this circuit have done so and concluded that
CAFA does not convey a clear Congressional intent to override the plain text
of the MMWA. See, e.g., id.; Riley v. Gen. Motors, LLC, 2023 WL 3241745, at
*2 (M.D. Fla. March 28, 2023) (compiling cases), appeal docketed, No. 23-11374
(11th Cir. Apr. 26, 2023). The Court finds the reasoning in these cases
persuasive. Since there are only six named plaintiffs here, the MMWA
Plaintiffs have failed to meet this jurisdictional bar. Even so, the MMWA
Plaintiffs contend that the Court has diversity and supplemental jurisdiction
33

over this claim. (Pls.’ Br. in Opp’n to Mot. to Dismiss, at 20). Yet, this
contention is conclusory. The MMWA Plaintiffs do not explain how they meet
the requirements for the exercise of either type of jurisdiction or how meeting
those requirements gets around the express limitation under the MMWA that
“[n]o claim shall be cognizable… if the action is brought as a class action, and
the number of named plaintiffs is less than one hundred.” 15 U.S.C.
§ 2310(d)(3). The Court therefore finds that the MMWA Plaintiffs have failed
to state their MMWA claim. 10
F. Fraudulent Concealment Claim
The Plaintiffs Bolling, Hale, Dedman, Foster-Gittens, and Phlegar bring
a claim of fraudulent concealment against the Defendants. MBUSA seeks
dismissal on various grounds. Before the Court reaches those grounds,
however, it must first resolve the dispute about what law applies as to each
Plaintiff.
i.

Choice of Law

The Fraudulent Concealment Plaintiffs contend that Georgia law

Even if the MMWA Plaintiffs can get around the
one-hundred-named-plaintiffs rule, they failed to respond to the MBUSA’s
argument that the MMWA Plaintiffs did not provide notice to the Defendants
that they were acting on behalf of a class, as required by 15 U.S. C. § 2310(e).
(Pls.’ Br. in Opp’n to Mot. to Dismiss, at 19-20). “[A] party’s failure to respond
to any portion or claim in a motion indicates such portion, claim or defense is
unopposed.” Jones v. Bank of Am., N.A., 564 F. App’x. 432, 434 (11th Cir. 2014)
(citation omitted). This failure provides an additional and independent reason
to grant the motion to dismiss with respect to Count III.
34
10

applies to all of them while MBUSA asserts that the law of each Plaintiff’s
state of residence applies. The Court agrees with the Plaintiffs. Since this is a
diversity case, the Court looks to state choice-of-law rules to determine the
applicable substantive law. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496-97 (1941). Georgia follows the traditional lex loci contractus and lex loci

delecti choice-of-law rules. Rayle Tech, Inc. v. DEKALB Swine Breeders, Inc.,
133 F.3d 1405, 1409 (11th Cir. 1998). “Under these rules, respectively, contract
disputes are governed by the substantive law of the state where the contract
was made and tort disputes are governed by the substantive law of the state
where the tort was committed.” Monopoli v. Mercedes-Benz USA, LLC, 2022
WL 409484, at *4 (N.D. Ga. Feb. 10, 2022)) (quotation marks and citation
omitted). However, under Georgia law, “it is clear that the application of
another jurisdiction’s laws is limited to statutes and decisions construing those
statutes.” Frank Briscoe Co. Inc. v. Ga. Sprinkler Co., Inc., 713 F.2d 1500, 1503
(11th Cir. 1983) (citations omitted). “When no statute is involved, Georgia
courts apply the common law as developed in Georgia rather than foreign case
law.” Id. (citations omitted). The Supreme Court of Georgia has found that
when “no statute of the foreign State is pleaded, it will be presumed that the
common law prevails in such State.” Avnet, Inc. v. Wyle Lab’ys, Inc., 263 Ga.
615, 620 (1993) (citation omitted). Here, the Complaint does not plead a statute
of another state with respect to the fraudulent concealment claim, and the
MBUSA does not provide any basis for overcoming the presumption that
35

Georgia common law applies. The only case that MBUSA offers to show that
foreign law applies is Callen, 2020 WL 10090879, at *14. (Reply Br. in Supp.
of Mot. to Dismiss, at 18). However, that case “did not address the issue of
whether Georgia common-law should be applied.” Monopoli, 2022 WL 409484,
at *5 (citations omitted). Accordingly, the Court finds that Georgia common
law applies to all of the Fraudulent Concealment Plaintiffs.
ii.

Concealment

Under Georgia law, a fraudulent concealment claim has five elements:
“(1) a false representation or omission of a material fact; (2) scienter;
(3) intention to induce the party claiming fraud to act or refrain from acting;
(4) justifiable reliance; and (5) damages.” Meyer v. Waite, 270 Ga. App. 255,
257-58 (2004) (citation omitted). “In federal court, fraud allegations must be
pleaded with the particularity required by Rule 9(b).” Callen, 2020 WL
10090879, at *14. MBUSA’s first proffered ground for dismissing this count is
that the First Amended Complaint did not allege concealment with sufficient
particularity. However, “Plaintiffs plead a fraud-by-omission case, and in cases
where the fraud alleged is the fraudulent omission of information within the
exclusive control of the Defendant, the [Rule 9(b)] standard is relaxed.”

Kearney v. Bayerische Motoren Werke Aktiengesellschaft, 2018 WL 4144683,
at *10 (D.N.J. Aug. 29, 2018) (quotation marks and citation omitted); see also

Monopoli, 2022 WL 409484 at *10 (“By the very nature of fraudulent
concealment, plaintiffs cannot be expected to point to the time, place, and
36

precise substance of what should have been disclosed.”). Because of the nature
of the Fraudulent Concealment Plaintiffs’ claim, “it is enough for plaintiffs to
allege that a fact was material and that it could have, and should have, been
disclosed prior to the time plaintiffs acted upon the omission.” Monopoli, 2022
WL 409484 at *10 (citations omitted). The First Amended Complaint states
that the Defendants had exclusive control over information about the PSR
defect and never told the Plaintiffs about it. (First Am. Compl. ¶ 94, 248). Thus,
if the First Amended Complaint adequately alleges knowledge, a duty to
disclose, and justifiable reliance, then the Fraudulent Concealment Plaintiffs
have adequately alleged concealment here.
iii.

Scienter

The Court thus turns to MBUSA’s argument that the Fraudulent
Concealment Plaintiffs did not properly plead scienter. Even under the
heightened pleading standard, “[m]alice, intent, knowledge, and other
conditions of a person's mind may be alleged generally.” Fed. R. Civ. Pro. 9(b).
The Fraudulent Concealment Plaintiffs contend they have met this standard
by pointing to eight sources of the Defendants’ knowledge:
(1) the 2006 NHTSA investigation;
(2) Mercedes’ knowledge of multiple consumer complaints
submitted to NHTSA, some of which are excerpted in the FAC;
(3) pre-release testing data;
(4) testing data after receiving consumer complaints;
(5) warranty claims and data;
(6) data from inordinately high volumes of replacement part sales;
(7) testing by the Korea Automobile Testing & Research Institute;
and
37

(8) employee acknowledgement statements.
(Pls.’ Br. in Opp’n to Mot. to Dismiss, at 23) (footnote omitted). MBUSA asserts
that these are insufficient. It argues that (1) the NHTSA investigation involved
other car companies and did not find that there was a defect in those vehicles,
(2) customer complaints do not establish knowledge of a class-wide defect since
windows can break for many different reasons, and (3) the other sources were
pled in a conclusory manner that does not explain how they would have alerted
the Defendants to a systemic defect. (MBUSA’s Br. in Supp. of Mot. to Dismiss,
at 22-23; Reply Br. in Supp. of Mot. to Dismiss, at 16). The Court finds that the
Fraudulent Concealment Plaintiffs have adequately alleged scienter.
As an initial matter, the Court agrees with MBUSA that the NHTSA
investigation report does not support an inference that the Defendants knew
of the alleged defect. First, the investigation report did not conclude there was
a defect: “Through analysis of the information obtained to date, [the NHTSA’s
Office of Defects Investigation] has not identified sufficient evidence of a
safety-related defect in the subject sunroof.” NAT’L HIGHWAY TRAFFIC SAFETY
ADMIN., U.S. DEP’T

OF

TRANSP., EA 14-002, ENGINEERING ANALYSIS CLOSING

REPORT, 6 (2021). Moreover, the investigation was focused on 2011-2013 Kia
Sorento vehicles rather than the Class Vehicles. The Fraudulent Concealment
Plaintiffs fail to explain how an investigation that did not find a defect in the
PSRs and centered around other types of vehicles shows that the Defendants
knew about a defect in the Class vehicles.
38

The Court also finds that the testing by the Korea Automobile Testing
& Research Institute (“KATRI”) does not support an inference that the
Defendants knew about the defect. The First Amended Complaint alleges that
KATRI found that the enamel used for PSRs in Mercedes vehicles makes the
glass less durable. (First Am. Compl. ¶ 55). Yet, there is no allegation
indicating that the Defendants had reason to know about this testing. The
Court cannot reasonably infer knowledge of the defect based on a report that
the Defendants may not have seen. The Court will therefore disregard this
report for present purposes.
Even without considering the NHTSA investigation or KATRI report,
the Fraudulent Concealment Plaintiffs have stated sufficient facts to support
a reasonable inference that the Defendants knew of the alleged defect. For
starters, the First Amended Complaint alleges that the Defendants conducted
pre-sale durability testing on its sunroofs that would have revealed the alleged
defect. (First Am. Compl. ¶ 14). This allegation supports “the reasonable
inference that the Defendants did, in fact, conduct various tests that could have
revealed the existence of the defect.” Callen, 2020 WL 10090879, at *16.
When this is added to the Fraudulent Concealment Plaintiffs’ other
allegations, it is sufficient to support an inference of knowledge at this stage of
the litigation. The Fraudulent Concealment Plaintiffs allege that there have
been consumer complaints on the NHTSA website for years reporting
spontaneously shattering PSRs with Mercedes-Benz vehicles and that
39

“Mercedes has a regular practice of monitoring NHTSA’s website for emerging
problems with its vehicles.” (First Am. Compl. ¶¶62, 65-66). Furthermore, the
dealership representatives allegedly stated that shattering PSRs were not an
uncommon occurrence, and the Defendants’ customer relations department
monitors repair requests at dealerships, which are only reimbursed for repairs
if they provide detailed information about the problem addressed. (Id. ¶¶ 9,
15-16, 104, 142). “Courts have found similar knowledge-related allegations
sufficient.” Kearney, 2018 WL 4144683, at *11 (D.N.J. Aug. 29, 2018) (citations
omitted) (finding knowledge sufficiently alleged when the plaintiffs rely on
“pre-production testing, pre-production design or failure mode analysis, ...
early consumer complaints made to Defendants’ network of exclusive dealers,
aggregate warranty data compiled from those dealers, consumer complaints to
dealers and NHTSA, and testing performed in response to consumer
complaints”). Overall, viewing the facts in the light most favorable to the
Fraudulent Concealment Plaintiffs, the Court finds that the First Amended
Complaint plausibly alleges knowledge, even if each individual piece may not
by itself. See Pinon, 2019 WL 11648560, at *24 (collecting cases).
iv.

Duty to Disclose

MBUSA also contends that the Fraudulent Concealment Count should
be dismissed because it did not have a duty to disclose the defect to the
Fraudulent Concealment Plaintiffs. (MBUSA’s Br. in Supp. of Mot. to Dismiss,
at 23-24). Under Georgia law, a duty to disclose “may arise from the
40

confidential relations of the parties or from the particular circumstances of the
case.” O.C.G.A. § 23-2-53. Thus, a duty to disclose may exist even without a
confidential relationship if the particular circumstances of the case create the
duty. See Monopoli, 2022 WL 409484, at *11-12.

11

“The particular

circumstances of the case may give rise to an obligation to communicate where
there is a concealment of ‘intrinsic qualities of the article which the other party
by the exercise of ordinary prudence and caution could not discover.’” McCabe,
948 F. Supp. 2d at 1368 (quoting Rivers v. BMW of N. Am., Inc., 214 Ga. App.
880, 883-84 (1994)). 12
The Fraudulent Concealment Plaintiffs have alleged (1) that the
Defendants knew about the defect, (2) that they failed to disclose the defect to
consumers, (3) that consumers could not discover the defect through
reasonable diligence, and (4) that the Defendants had a pretextual pattern and
practice of systematically concluding that the PSRs shattered because of an
outside force rather than the alleged defect. (First Am. Compl. ¶¶ 14, 18, 108,
171). MBUSA argues that these allegations are insufficient because they do
For this reason, Lucky Cap. Mgmt., LLC v. Miller & Martin, PLLC,
741 F. App’x. 612 (11th Cir. 2018) is not binding in this case. There, the court
held that no duty to disclose arises out of American Bar Association Model Rule
of Professional Conduct 1.13. Id. at 618-19. The court then dismissed the
fraudulent concealment claim because the plaintiff did not allege any other
basis for the duty to disclose. Id. at 619.
12 Several of MBUSA’s arguments are based on the laws of other states.
Since the Court has already ruled that Georgia law applies to all of the
Fraudulent Concealment Plaintiffs, those arguments are without merit. See
supra Section III.F.i.
41
11

not show active concealment, which it asserts is necessary for a claim of
fraudulent concealment. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 24;
Reply Br. in Supp. of Mot. to Dismiss, at 17-18). However, the Georgia cases to
which MBUSA cites for that requirement are not on point. They discuss what
must be shown to demonstrate concealment of a cause of action and to thus toll
the statute of limitations; they do not discuss what is necessary to allege a duty
to disclose. Robertson v. Robertson, 333 Ga. App. 864, 869-70 (2015); Fed. Ins.

Co. v. Westside Supply Co., 264 Ga. App. 240, 243-44 (2003); Feinour v. Ricker
Co., 255 Ga. App. 651, 655 (2002). “At this stage, it suffices that Plaintiffs have
plausibly alleged that Mercedes concealed an intrinsic quality of the Class
Vehicles that Plaintiffs and consumers generally could not have discovered in
the exercise of reasonable care.” Monopoli, 2022 WL 409484, at *12 (quotation
marks and citations omitted). The Fraudulent Concealment Plaintiffs have
done so here.
v.

Justifiable Reliance

MBUSA asserts that the Fraudulent Concealment Plaintiffs have not
adequately alleged justifiable reliance because they have not provided any
allegedly misleading material that they relied upon when deciding to purchase
the Class Vehicles. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 24-26). To the
extent that MBUSA’s arguments rely on cases decided under other states’
laws, they are of limited value since Georgia law applies to all of the
Fraudulent Concealment Plaintiffs. Moreover, the Georgia cases to which
42

MBUSA cites apply the fraudulent misrepresentation standard. Burgess v.

Religious Tech. Ctr., Inc., 600 F. App’x 657, 663 (11th Cir. 2015); Brazil v.
Janssen Rsch. & Dev. LLC, 249 F. Supp. 3d 1321, 1339 (N.D. Ga. 2016).
“Significantly, however, allegations sufficient to show justifiable reliance on an
omission differ from those sufficient to show reliance on a misrepresentation.
By the very nature of fraudulent concealment, plaintiffs cannot be expected to
point to the time, place, and precise substance of what should have been
disclosed.” Monopoli, 2022 WL 409484, at *10. The Fraudulent Concealment
Plaintiffs have alleged that (1) the Defendants knew about the defect, (2) the
Defendants failed to disclose the defect, and (3) the Fraudulent Concealment
Plaintiffs would not have paid as much for the Class Vehicles or would not have
purchased them at all. (First Am. Compl. ¶¶ 9, 12, 17, 83-84, 249-52, 254). The
Court finds that the Fraudulent Concealment Plaintiffs have sufficiently
alleged justifiable reliance. See, e.g., Amin, 301 F. Supp. 3d at 1296; Monopoli,
2022 WL 409484, at *10 (“Here, Plaintiffs allege that Mercedes knew about the
defective AHR, that Mercedes failed to disclose this defect to its consumers
prior to purchasing, and ‘[h]ad Mercedes disclosed the AHR defect, [Plaintiffs]
would not have purchased [their] vehicle[s], or would not have paid as much
for [them].’ This is sufficient to allege justifiable reliance for purposes of a
fraudulent concealment claim.” (footnote omitted)).
vi.

Economic Loss Doctrine

Finally, MBUSA argues that the economic loss doctrine bars the
43

Plaintiffs Bolling, Hale, and Phlegar’s fraudulent concealment claim since they
do not allege any personal injury or damage. (MBUSA’s Br. in Supp. of Mot. to
Dismiss, at 26-27). “The economic loss rule provides that absent personal
injury or damage to property other than to the allegedly defective product itself
an action in negligence does not lie and any such cause of action may be
brought only as a contract warranty action.” Advanced Drainage Sys., Inc. v.

Lowman, 210 Ga. App. 731, 733 (1993) (citation omitted). However, “[t]he
economic loss rule is inapplicable in the presence of passive concealment or
fraud.” Holloman v. D.R. Horton, Inc., 241 Ga. App. 141, 148 (1999). None of
the cases to which MBUSA cites apply Georgia law. See Harman, 586 F. Supp.
3d at 1165-66 (applying Alabama and Florida law); Stewart v. Electrolux Home

Prods., Inc., 304 F. Supp. 3d 894, 902 (E.D. Cal. 2018) (applying California
law); In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., 2015 WL
3796456, at *3 (N.D. Ga. June 18, 2015) (applying Florida law); Wallace v.

SunTrust Mortg., Inc., 974 F. Supp. 2d 1358, 1369-70 (S.D. Ala. 2013) (applying
Alabama law). The Court therefore finds that the economic loss rule does not
bar the Plaintiffs Bolling, Hale, and Phlegar’s claim.
G. Unjust Enrichment Claim
The Plaintiffs Bolling, Hale, Dedman, Foster-Gittens, and Phlegar
assert unjust enrichment claim in the alternative against the Defendants. In
response, MBUSA moves to dismiss the claim because the NVLW governs the
dispute. As an initial matter, the Court notes that the Plaintiffs Hale, Dedman,
44

and Phlegar either did not raise an express warranty claim or had it dismissed
already. MBUSA itself concedes that if there is no active express warranty
claim, the unjust enrichment claim can proceed. (Reply Br. in Supp. of Mot. to
Dismiss, at 20) (“In Amin, [301 F. Supp. 3d at 1296,] the breach of express
warranty claim had been dismissed, thus allowing the plaintiff in that case to
proceed under an unjust enrichment theory.”). Thus, the question of whether
the NVLW precludes the unjust enrichment claim applies only to the Plaintiffs
Bolling and Foster-Gittens. Georgia law applies to each of these Plaintiffs for
the same reasons Georgia law applied to them for their fraudulent concealment
claim. See supra Section III.F.i.
“[T]he doctrine of unjust enrichment applies in the absence of a written
contract between parties; where such a contract exists, however, it is the
contract that governs the dispute and neither party can rely on unjust
enrichment.” Peterson v. Aaron’s, Inc., 2015 WL 5479877, at *2 (N.D. Ga. Sept.
16, 2015) (citation omitted). “Typically a party may plead unjust enrichment
as an alternative to a breach of contract claim, even though it may not recover
under both theories.” Techjet Innovations Corp. v. Benjelloun, 203 F. Supp. 3d
1219, 1234 (N.D. Ga. 2016) (citation omitted). Notwithstanding that, “courts
have held that a plaintiff may not plead an unjust enrichment claim in the
alternative to a claim for breach of contract when it is undisputed (or when the
court has found) that a valid contract exists.” Clark’s v. Aaron’s, Inc., 914 F.
Supp. 2d 1301, 1310 (N.D. Ga. 2012) (citations omitted). The Plaintiffs Bolling
45

and Foster-Gittens do not contest the existence of a valid contract. “To the
contrary, their breach of express warranty claims are necessarily predicated
on the existence of valid and enforceable contracts between the parties.”

Callen, 2020 WL 10090879, at *13. As such, the Court finds that the Plaintiffs
Bolling and Foster-Gittens cannot state a claim of unjust enrichment in the
alternative.
H. State Law Claims
i.

Alabama Deceptive Trade Practices Act (“ADTPA”) Claim

The Plaintiffs Bolling and Hale raise claim against the Defendants
under the ADTPA. MBUSA argues their claim should be dismissed for two
reasons. First, it argues that the ADTPA claim should fail because the
Plaintiffs have not properly alleged that the Defendants knowingly engaged in
deceptive conduct. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 29; Reply Br.
in Supp. of Mot. to Dismiss, at 20-21). Second, MBUSA states that the
Plaintiffs Bolling and Hale “cannot plead a fraud claim at the same time” as
an ADTPA claim. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 29-30). The
Court does not find either of these arguments to be persuasive at this stage.
Starting with the MBUSA’s first argument, the ADTPA prohibits in
relevant part “[c]ausing confusion or misunderstanding as to the source,
sponsorship, approval, or certification of goods or services,” “[r]epresenting
that goods or services are of a particular standard, quality, or grade, or that
goods are of a particular style or model, if they are of another,” and “[e]ngaging
46

in any other unconscionable, false, misleading, or deceptive act or practice in
the conduct of trade or commerce.” Ala. Code § 8-19-5. 13 “A plaintiff may allege
an ADTPA claim based on concealment, suppression, or omission, so long as
he or she can demonstrate some knowledge of false or deceptive conduct on the
part of the wrongdoer.” Hurry, 622 F. Supp. 3d at 1157 (quotation marks and
citation omitted). Under the ADTPA, “knowledge” is defined to include “[e]ither
actual awareness or such awareness as a reasonable person should have
considering all the surrounding circumstances.” Ala. Code § 8-19-3(9). As
explained above, the First Amended Complaint plausibly alleges that the
Defendants knew or should have known about the alleged defect. See supra
Section III.F.iii.
The cases to which MBUSA cites do not change that conclusion. In

Strickland v. Kafko Mfg., Inc., 512 So. 2d 714, 718 (Ala. 1987), the Supreme
Court of Alabama affirmed a directed verdict against an ADTPA plaintiff

MBUSA contend that the “Plaintiffs’ ADTPA claims require the same
elements as plaintiffs’ fraudulent concealment claims.” (Defs.’ Br. in Supp. of
Mot. to Dismiss, at 29). However, the authority to which it cites does not
support that claim. Moreover, to the extent that they do have the same
elements, those elements do not always appear to be applied the same way.
Compare Cook’s Pest Control, Inc. v. Rebar, 28 So. 3d 716, 726 (Ala. 2009)
(“Even if Duggan should have discovered an active termite infestation during
his inspection, unless he actually did discover it, a claim of fraudulent
suppression will not lie.”) with Ala. Code § 8-19-3(9) (defining “knowingly” for
the purposes of the ADTPA to include “[e]ither actual awareness or such
awareness as a reasonable person should have considering all the surrounding
circumstances.”). The Court will thus only consider cases applying the ADTPA
for the purposes of this claim.
47
13

because at trial there was “no evidence that Kafko knew it was failing to ship
goods for which it had been paid” and no evidence to “support a finding that
Kafko was paid for a pool.” Similarly, the opinion in Lynn v. Fort McClellan

Credit Union, 2013 WL 5707372, at *7 (N.D. Ala. Oct. 21, 2013) was a
memorandum of decision following a bench trial in which the plaintiff did not
“show any intent by Family Nissan to deceive him, or that he was in any way
deceived.” Since both of these decisions were rendered based on a lack of
evidence presented at trial, they have limited application at the pleading stage
where allegations in the complaint are to be taken as true. The Court therefore
finds that the Plaintiffs Bolling and Hale have properly pled that the
Defendants knowingly engaged in deceptive conduct for the reasons explained
above. See supra Section III.F.
Turning to the MBUSA’s second argument, the ADTPA states that:
The civil remedies provided herein and the civil remedies
available at common law, by statute or otherwise, for fraud,
misrepresentation, deceit, suppression of material facts or
fraudulent concealment are mutually exclusive. An election to
pursue the civil remedies prescribed in this chapter shall exclude
and be a surrender of all other rights and remedies available at
common law, by statute or otherwise, for fraud,
misrepresentation, deceit, suppression of material facts or
fraudulent concealment arising out of any act, occurrence or
transaction actionable under this chapter.
Ala. Code § 8-19-15(a). MBUSA argues that this provision requires dismissal
of either the Plaintiffs Bolling and Hale’s ADTPA claim or their fraudulent
concealment claim. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 29-30). The
48

ADTPA Plaintiffs assert that they can plead their ADTPA claim and
fraudulent concealment claim in the alternative under Fed. R. Civ. P. 8. (Pls.’
Br. in Opp’n to Mot. to Dismiss, at 29-30).
There is a substantial conflict in the case law as to whether ADTPA
plaintiffs must make “an election” to pursue a common law claim or ADTPA
claim at the pleading stage or whether they may wait until later in the
litigation to decide. See Pinon, 2019 WL 11648560, at *25 (compiling cases for
each position). The Court finds that the Plaintiffs Bolling and Hale may plead
their ADTPA claim in the alternative to their fraudulent concealment claim.
“First, although the plain language of the savings clause requires a plaintiff to
elect one or the other remedy, it does not specify when in the proceedings the
plaintiff must do so.” In re Gen. Motors LLC Ignition Switch Litig., 257 F.
Supp. 3d 372, 405 (S.D.N.Y. 2017). Furthermore, the Court is not convinced by
MBUSA’s argument that allowing the ADTPA Plaintiffs to plead in the
alternative will enlarge their substantive rights. See id. (“Allowing Glenn to
recover on her ADPTA claim and her common law fraud claim would obviously
enlarge her substantive rights contrary to the language of the Act's savings
clause. But the right to plead alternative, or even inconsistent, claims is not a
matter of substance; it is a quintessential matter of procedure.”). For these
reasons, the Court agrees with “the strong plurality of cases on point” by
“following the Rule 8 theme of allowing alternative, even conflicting, claims to
be pled at this stage.” Boddison v. Gen. Motors LLC, 2021 WL 2685770, at *3
49

(M.D. Fla. June 30, 2021). As such, the Plaintiffs Bolling and Hale’s ADTPA
claim will not be dismissed.
ii.

Georgia Fair Business Practices Act (“GFBPA”) and Georgia
Uniform Deceptive Trade Practices Act (“GUDTPA”) Claim

The Plaintiffs Dedman and Foster-Gittens raise a claim under both the
GFBPA and GUDTPA. MBUSA asserts that their GFBPA claim “fail[s] for the
same reasons the fraudulent concealment claims fail,” namely that the
Plaintiffs Dedman and Foster-Gittens have made only conclusory allegations
that they justifiably relied on any alleged misrepresentations. (MBUSA’s Br.
in Supp. of Mot. to Dismiss, at 30). The Plaintiffs Dedman and Foster-Gittens
state that they reviewed written materials and spoke to a dealer
representative before purchasing their vehicles. (First Am. Compl. ¶¶ 124,
137). They further state that none of the sources provided disclosed the alleged
defect and that they would not have purchased the vehicle if they had known
about the defect. (Id. ¶¶ 124-25, 137-38). For the reasons explained above, this
is sufficient to plead justified reliance. See supra Section III.F.v.
As for the GUDTPA claim, MBUSA argues it should be dismissed
because the plaintiffs cannot show a likelihood of future harm. (MBUSA’s Br.
in Supp. of Mot. to Dismiss, at 30-31). GUDTPA provides that “[a] person likely
to be damaged by a deceptive trade practice of another may be granted an
injunction against it under the principles of equity and on terms that the court
considers reasonable.” O.C.G.A. § 10-1-373. To get such an injunction, a
50

plaintiff must allege a likelihood of future harm by the deceptive trade practice.

Amin, 301 F. Supp. at 1293 (citations omitted). MBUSA points to Callen, 2021
WL 4523436, at *6, to support their claim that the Plaintiffs do not meet this
standard. Callen involved allegedly defective interior wood trim that the
defendants refused to repair or replace. Id. The court dismissed the GUDTPA
claim because the plaintiff “has not alleged that she intends to purchase a
Class Vehicle in the future or that she ever has paid, or intends to pay, to
replace her trim” and she therefore lacked an allegation of future harm. Id.
By contrast, here the Plaintiffs Dedman and Foster-Gittens allege that
in order to restore their vehicles, they paid to have their PSRs replaced with
the same allegedly defective PSR that might shatter again in the future. (First
Am. Compl. ¶¶ 131-32, 141, 144, 293). These allegations are sufficient to find
a likelihood of future harm. See, e.g., Nalley, 2022 WL 18459646, at *8; Amin,
301 F. Supp. 3d at 1294-95. The Court therefore finds that the Plaintiffs
Dedman and Foster-Gittens have standing to assert their GUDTPA claim.
iii.

Virginia Consumer Protection Act (“VCPA”) Claim

“To properly state a cause of action under the VCPA, Plaintiff must
allege (1) fraud, (2) by a supplier, (3) in a consumer transaction.” Nahigian v.

Juno Loudoun, LLC, 684 F. Supp. 2d 731, 741 (E.D. Va. 2010) (citation
omitted). MBUSA argues that the Plaintiff Majette has not sufficiently pled
fraud because he does not plead with particularity reliance on a specific
misrepresentation or omission made by MBUSA and does not state facts
51

showing MBUSA’s knowledge of the defect. (MBUSA’s Br. in Supp. of Mot. to
Dismiss, at 31). The Court has already found that the Fraudulent Concealment
Plaintiffs have stated sufficient facts to plausibly allege knowledge and
reliance on an omission. MBUSA has provided no authority for concluding that
the VCPA has a higher pleading standard. See Fravel v. Ford Motor. Co, 973
F. Supp. 2d 651, 656-57 (W.D. Va. 2013). The Plaintiff Majette has
incorporated the same facts that led the Court find that Rule 9(b) has been
satisfied. (First Am. Compl. ¶ 304). Furthermore, he specifically alleged
reliance as to himself and knowledge by the Defendants. (Id. ¶¶ 149, 310, 313,
318). The Court therefore finds that the Plaintiff Majette has properly alleged
a VCPA violation.
iv.

Unfair Competition Law (“UCL”) Claim

Plaintiff Phlegar alleges that the Defendants violated California’s UCL.
MBUSA seeks dismissal of the count because Plaintiff Phelgar does not allege
facts showing that she lacks an adequate remedy at law. (MBUSA’s Br. in
Supp. of Mot. to Dismiss, at 31-32). Additionally, MBUSA contends that the
count should be dismissed because Plaintiff Phlegar has not adequately alleged
any acts that are unlawful, unfair, or fraudulent. (Id., at 32-35). The Court is
unpersuaded by either argument.
MBUSA’s argument that the UCL claim must be dismissed because
there is an adequate remedy at law relies on Sonner v. Premier Nutrition Corp,
971 F.3d 834 (9th Cir. 2020), and its progeny. (MBUSA’s Br. in Supp. of Mot.
52

to Dismiss, at 31-32; Reply Br. in Supp. of Mot. to Dismiss, at 24-25). Sonner
holds that a plaintiff “must establish that she lacks an adequate remedy at law
before securing equitable restitution for past harm under the UCL and CLRA.”

Sonner, 971 F.3d at 844. In determining whether a plaintiff has done so, “the
federal court must apply federal principles governing equity jurisdiction.”

Guzman v. Polaris Indus. Inc., 49 F.4th 1308, 1312 (9th Cir. 2022) (citation
omitted), cert. denied sub nom. Polaris Indus. Inc. v. Albright, 143 S. Ct. 2612
(2023). As stated above, federal principles permit plaintiffs to plead alternative
relief. See supra III.A.iii.; Fed. R. Civ. P. 8(a)(3). Consequently, “Sonner does
not hold that plaintiffs may not seek alternative remedies at the pleading
stage.” Sagastume v. Psychemedics Corp., 2020 WL 8175597, at *7 (C.D. Cal.
Nov. 30, 2020) (citations omitted). It is too early at this stage to find that the
Plaintiff Phlegar has an adequate remedy at law based on the allegation in the
First Amended Complaint. See Wildin v. FCA US LLC, 2018 WL 3032986, at
*7 (S.D. Cal. June 19, 2018) (“Discovery may reveal that the Wildins’ claims
providing legal remedies are inadequate for any number of reasons, despite the
fact that their allegations appear adequate.”). Furthermore, unlike in Sonner,
the Plaintiff Phlegar does not merely seek a refund of the purchase price as
equitable relief. Compare (First Am. Compl. ¶ 333) with Sonner, 971 F.3d at
844 (“Sonner concedes that she seeks the same sum in equitable restitution as
‘a full refund of the purchase price’—$32,000,000—as she requested in
damages to compensate her for the same past harm. Sonner fails to explain
53

how the same amount of money for the exact same harm is inadequate or
incomplete, and nothing in the record supports that conclusion.”). For these
reasons, the Court will not dismiss the UCL claim for failure to adequately
allege an inadequate remedy at law.
MBUSA also moves to dismiss the UCL claim because the Plaintiff
Phlegar has failed to allege sufficient facts showing unlawful, unfair, or
fraudulent practices. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 32-35).
Because the UCL “is written in the disjunctive, it establishes three varieties of
unfair competition—acts or practices which are unlawful, or unfair, or
fraudulent.” Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1554
(2007) (citation omitted). “An act can be alleged to violate any or all of the three
prongs of the UCL—unlawful, unfair, or fraudulent.” Id. An unlawful practice
is any practice “forbidden by law, be it civil or criminal, federal, state, or
municipal, statutory, regulatory, or court-made.” Leids v. Metlife Home Loans,
2009 WL 4894991, at *4 (C.D. Cal. Dec. 7, 2009) (citation omitted). The
Plaintiffs assert that they have satisfied this prong by alleging a violation of
the Consumer Legal Remedies Act (“CLRA”). (First Am. Compl. ¶ 327; Pls.’ Br.
in Opp’n to Mot. to Dismiss, at 32). For the reasons described below, the Court
agrees. See infra Section III.H.v. Because the Plaintiff Phlegar has properly
alleged a violation of the CLRA and because the UCL is written in the
disjunctive, the Court need not analyze whether the First Amended Complaint
adequately alleges any unfair or fraudulent practices under the meaning of the
54

UCL.
v.

CLRA Claim

The Plaintiff Phlegar raises a CLRA claim against the Defendants.
MBUSA moves to dismiss the claim for failure to sufficiently plead knowledge
and reliance. The Court finds that the Plaintiff Phlegar has adequately alleged
both knowledge and reliance.
The CLRA requires plaintiffs to sufficiently allege that a defendant was
aware of the defect at the time of sale to survive a motion to dismiss. Wilson v.

Hewlett-Packard Co., 668 F.3d 1136, 1145 (9th Cir. 2012). Rule 9(b)’s
heightened pleading standard applies to CLRA claims. Kearns v. Ford Motor

Co., 567 F.3d 1120, 1125 (9th Cir. 2009). However, as explained above, Rule
9(b) permits knowledge to be alleged generally. Fed. R. Civ. P. 9(b). The Court
has already found above that the Plaintiff Phlegar’s factual allegations meet
that requirement. See supra Section III.F.iii. That conclusion is further
bolstered by the “broad applicability” of the CLRA and the lack of “clear,
binding precedent” dismissing CLRA claims for lack of knowledge. Hadjian,
2022 WL 3699603 (citations omitted). The Court finds that the Plaintiff
Phlegar has adequately alleged the Defendants’ knowledge of the defect for her
CLRA claim.
MBUSA next argues that the CLRA claim should be dismissed because
the Plaintiff Phlegar did not allege any “specific facts showing that she actually
saw advertisements, or that she relied on them in deciding to purchase her
55

vehicle.” (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 37). The CLRA cases
that MBUSA relies on are inapposite because they involve misrepresentation
rather than omissions. See In re iPhone 4S Consumer Litig., 2013 WL 3829653,
at *1-4, 12 (N.D. Cal. July 23, 2013); Cattie v. Wal-Mart Stores, Inc., 504 F.
Supp. 2d 939, 946 (S.D. Cal. 2007) (“Plaintiff alleges the thread count of the
sheets she bought was lower than advertised and that, therefore, the sheets
were not of the quality they were advertised to be.”). However, “[c]learly, a
plaintiff in a fraud by omission suit will not be able to specify the time, place,
and specific content of an omission as precisely as would a plaintiff in a false
representation claim.” Falk v. Gen. Motors Corp., 496 F. Supp. 2d 1088, 109899 (N.D. Cal. 2007). Accordingly, “[p]leading reliance on an omission is not a
particularly difficult burden.” In re Volkswagen “Clean Diesel” Mktg., Sales

Pracs., and Prods. Liab. Litig., 349 F. Supp. 3d 881, 918 (N.D. Cal. 2018).
“Under California law, a plaintiff may do so simply by alleging that, had the
omitted information been disclosed, one would have been aware of it and
behaved differently.” Id. (quotation marks and citation omitted). The Plaintiff
Phlegar has alleged that the defect was not disclosed to her by the Defendants’
website, literature, or sales representatives at the point of sale. (First Am.
Compl. ¶¶ 155, 339). She further alleges that she would not have purchased
the vehicle or would have paid less for it if the Defendants had disclosed the
defect. (Id. ¶¶ 156, 340). This is sufficient to allege reliance under the CLRA.
The Plaintiff Phlegar’s CLRA claim therefore will not be dismissed.
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vi.

Song-Beverly Implied Warranty Claim

The final claim against the Defendants is the Plaintiff Phlegar’s
Song-Beverly Act claim. MBUSA moves to dismiss this claim both because the
claim is time-barred and because the Plaintiff Phlegar’s vehicle was not unfit
for its ordinary purpose. (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 37-40).
The Court disagrees.
First, “[t]he Song-Beverly Act does not include its own statute of
limitations; rather, the statute of limitations is governed by two separate time
limits.” Tanner v. Ford Motor Co., 424 F. Supp. 3d 666, 670-71 (N.D. Cal. 2019)
(citation omitted). The first time limit is that the implied warranty lasts for a
duration not to exceed one year following the sale of the good to a retail buyer.
Cal. Civ. Code § 1791.1(c). “After that period the warranty ceases to exist,
which means any breach of the implied warranty must have occurred within
one-year of purchase.” Tanner, 424 F. Supp. 3d at 671 (quotation marks and
citation omitted). The second time limit is the statute of limitations. Id. For
Song-Beverly Act claims, a plaintiff must bring their claims within four years
of the time the breach occurs or should have been discovered. Smothers v.

BMW of N. Am., LLC, 813 F. App’x 291, 293 (9th Cir. 2020); Cal. Com. Code
§ 2725. MBUSA does not contest in its Motion to Dismiss [Doc. 43] that the
Plaintiff Phlegar has complied with the requirements of the statute of
limitations if the alleged breach was covered by the warranty.
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However, there is a dispute as to whether the warranty was still in effect
when the PSR shattered. The Plaintiff Phlegar says it was because the alleged
defect was latent at the time of sale; MBUSA says it was not because the PSR
did not allegedly shatter until over a year after the vehicle was purchased. The
Plaintiff Phlegar relies largely on Mexia v. Rinker Boat Co., Inc., 174 Cal. App.
4th 1297 (2009). In Mexia, the court found that “[t]he implied warranty of
merchantability may be breached by a latent defect undiscoverable at the time
of sale.” Id. at 1304 (citations omitted). “In the case of a latent defect, a product
is rendered unmerchantable, and the warranty of merchantability is breached,
by the existence of the unseen defect, not by its subsequent discovery.” Id. at
1305. The Plaintiff Phlegar then argues that she has alleged the PSR defect
was latent at the time of sale, which under Mexia means the defect occurred
within the durational period of the warranty. (Pls.’ Br. in Opp’n to Mot. to
Dismiss, at 39).
On the other hand, MBUSA cites to several federal cases after Mexia
that dismissed Song-Beverly Act claims because the alleged breaches occurred
after the warranty period. (Reply Br. in Supp. of Mot. to Dismiss, at 29-30).
Many of those cases expressly criticized or cabined the holding of Mexia.

Valencia v. Volkswagen Grp. of Am. Inc, 119 F. Supp. 3d 1130, 1139-40 (N.D.
Cal. 2015); Peterson v. Mazda Motor of Am., Inc., 44 F. Supp. 3d 965, 971-72
(C.D. Cal. 2014); Grodzitsky v. Am. Honda Motor Co., Inc., 2013 WL 2631326,
at *10-11 (C.D. Cal. June 12, 2013); Marchante v. Sony Corp. of Am., Inc., 801
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F. Supp. 2d 1013, 1021-22 (S.D. Cal. 2011). However, since those cases have
been decided, the Ninth Circuit has ruled that Mexia must be followed. Daniel

v. Ford Motor Co., 806 F.3d 1217, 1222-23 (9th Cir. 2015). It found that “there
is not convincing evidence that the California Supreme Court would decide the
latent defect discovery issue that was presented in Mexia differently.” Id. at
1222. MBUSA has presented no subsequent authority that would change this
finding. As such, the Court follows Mexia’s ruling that “[t]here is nothing [in
Cal. Civ. Code § 1791.1(c)] that suggests a requirement that the purchaser
discover and report to the seller a latent defect within that time period.” Mexia,
174 Cal. App. 4th at 1310. The Plaintiff Phlegar’s claim is therefore not time
barred.
MBUSA also argues that the Song-Beverly Act claim should be
dismissed because the Plaintiff Phlegar’s car had been driven for years without
any issues and it therefore was not unmerchantable. (MBUSA’s Br. in Supp. of
Mot. to Dismiss, at 39-40). “Merchantability, as pertinent here, means that the
goods ‘[p]ass without objection in the trade under the contract description,’ and
are ‘fit for the ordinary purposes for which such goods are used.’” Brand v.

Hyundai Motor Am., 226 Cal. App. 4th 1538, 1545 (2014) (quoting Cal. Civ.
Code § 1791.1(a)). MBUSA states that the “Plaintiff admits the car had been
driven for years without incident, belying any claim that it does not satisfy a
minimum level of quality.” (MBUSA’s Br. in Supp. of Mot. to Dismiss, at 39).
However, MBUSA’s “attempt to define a vehicle as unfit only if it does not
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provide transportation is an unjustified dilution of the implied warranty of
merchantability.” Isip v. Mercedes-Benz USA, LLC, 155 Cal. App. 4th 19, 27
(2007).
MBUSA goes on to assert that “[a] one-time incident of sunroof glass
breakage does not render a car unmerchantable.” (MBUSA’s Br. in Supp. of
Mot. to Dismiss, at 40). Yet, none of the cases that it cites to support that
proposition involve sunroof glass breakage. Lee v. Toyota Motor Sales, U.S.A.,

Inc., 992 F. Supp. 2d 962, 979-80 (C.D. Cal. 2014) (“Plaintiffs have not and
cannot truthfully allege in light of the IIHS report that their pre-collision
braking feature failed to automatically slow their vehicles in an unavoidable
frontal collision.” (citation omitted); Troup v. Toyota Motor Corp., 545 F. App’x
668, 669 (9th Cir. 2013) (“[T]he defect alleged by the Troups did not implicate
the Prius's operability; rather, it merely required the Troups to refuel more
often.”); Hines v. Mercedes-Benz USA, LLC, 358 F. Supp. 2d 1222, 1225-26,
1232-33 (N.D. Ga. 2005) (applying Georgia law at the summary judgment stage
to alleged defects in the driver’s seat, alarm system, car phone, and fuel nozzle).
Meanwhile, in Tappana v. Am. Honda Motor Co., Inc., 609 F. Supp. 3d
1078, 1086 (C.D. Cal. 2022), the court found that the plaintiffs plausibly stated
that their vehicles were unmerchantable under the Song-Beverly Act when the
sunroofs shattered. There, the court reasoned that the vehicles were not fit for
their ordinary purpose because of the safety hazard that they posed and
because the plaintiffs likely would not have purchased the vehicles if they had
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known about the defect. Id. Similarly, here, the Plaintiff Phlegar alleges that
her vehicle’s “sunroof suddenly imploded and shattered.” (First Am. Compl. ¶
157). This caused there to be a hole in the roof of her car that exposed occupants
to the elements and led her to “promptly contact[] a nearby authorized
dealership” to seek repairs. (Id. ¶¶ 158-59, 350). The dealership refused to
cover the repairs, and the Plaintiff Phlegar has since replaced the glass. (Id.
¶¶ 159-60). Furthermore, the Plaintiff Phlegar alleges that if she had known
about the alleged defect, she would not have purchased the vehicle. (Id. ¶ 156).
The Court finds that these facts are sufficient to allege a Song-Beverly Act
claim.
IV.

Conclusion

For the reasons discussed above, MBUSA’s Motion to Dismiss the Class
Action Complaint [Doc. 33] is DENIED as moot, MBUSA’s Motion to Dismiss
the First Amended Complaint [Doc. 43] is GRANTED with respect to Count I
as to Plaintiffs Dedman and Phlegar, Count II as to Plaintiff Dedman, Count
III in its entirety, and Count V as to the Plaintiffs Bolling and Foster-Gittens.
It is DENIED as to all other claims. MBUSA’s Motion to Amend the Court’s
Order [Doc. 58] and Motion to Amend the Record [Doc. 73] are GRANTED.
SO ORDERED, this

27th

day of August, 2024.
__________________________ __
THOMAS W. THRASH, JR.
United States District Judge
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